EXHIBIT 10.61
AGREEMENT AND GENERAL RELEASE
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THIS AGREEMENT AND GENERAL RELEASE ("Agreement") is made and entered
into by and between E-OIR Technologies, Inc. ("E-OIR"), Xxxxxxxx Technologies,
Inc. ("Xxxxxxxx") and Xxxxxxx Xxxxxxxx, a natural person residing in
Fredericksburg, Virginia and his heirs, executors, administrators, successors,
and assigns (collectively referred to throughout this Agreement as "Xx.
Xxxxxxxx").
WHEREAS, Xxxxxxx Xxxxxxxx is currently employed as the Executive Vice
President, Chief Financial Officer and Chief Operating Officer of E-OIR
Technologies, Inc.; and
WHEREAS, Xx. Xxxxxxxx is also on the board of directors of Xxxxxxxx
Technologies and has been requested to resign his position because of the
outstanding litigation between Xxxxxxxx and Xx. Xxxxxxxx' family member; and
WHEREAS, an adverse condition to Xx. Xxxxxxxx' employment has occurred
which entitles him to voluntarily resign his employment without affecting the
obligations Xxxxxxxx and E-OIR have to Xx. Xxxxxxxx under that certain
Promissory Note provided to Xx. Xxxxxxxx to redeem his shares in E-OIR (the
"Promissory Note"); and
WHEREAS, the parties wish to resolve all disputes, known and unknown,
which have occurred up to the date of this agreement.
NOW therefore for good and valuable consideration, the parties agree as
follows:
1. ADVERSE CONDITION OF EMPLOYMENT. E-OIR agrees that it has made
decisions which are in the best interest of the company which have adversely
affected and will continue to adversely affect Xx. Xxxxxxxx' employment at
E-OIR.
2. LAST DAY OF EMPLOYMENT. Xx. Xxxxxxx'x last day of employment with
E-OIR will be the date all parties have executed the Agreement.
3. RESIGNATION AS DIRECTOR. Xx. Xxxxxxxx' resignation as a director of
Xxxxxxxx will be effective the date all parties have executed the Agreement.
4. PAYMENT OF VACATION LEAVE. Xx. Xxxxxxxx shall receive payment for
accrued and unused vacation time (180 hours) in a final paycheck which will be
issued and sent on the next regular payday after the execution of this
Agreement. E-OIR shall deduct from all amounts payable under this Agreement,
including amounts payable under benefit plans, all federal, state, local and
other taxes required by law to be withheld with respect to such payments.
5. CONSIDERATION. In consideration for signing this Agreement and
General Release and complying with the promises made herein, and in addition to
providing Xx. Xxxxxxxx with his accrued, unused vacation, and any and all
reimbursements for reasonable E-OIR business-related expenses incurred while
employed by E-OIR, provided such expenses were incurred in accordance with E-OIR
policy and are submitted by November 30, 2004, E-OIR and Xxxxxxxx agree as
follows:
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(a) E-OIR shall pay Xx. Xxxxxxxx twelve (12) months severance
pay in the amount of Two Hundred Thousand Dollars ($200,000). E-OIR shall deduct
any amounts payable under benefit plans and all federal, state, local and other
taxes required by law to be withheld with respect to such payments. Severance
payments shall be made on a monthly basis beginning November 15, 2004.
(b) Xx. Xxxxxxxx shall be entitled to retain all benefits
provided to senior executives at E-OIR through December 31, 2005, including but
not limited to medical and dental coverage. To the extent continuation
requirements of COBRA apply prior to December 31, 2005, E-OIR shall pay for the
cost of said coverage beginning on the last day of employment and ending on the
date Xx. Xxxxxxxx finds new employment, but no later than December 31, 2005. Xx.
Xxxxxxxx agrees to promptly notify E-OIR upon securing new employment offering
insurance benefits comparable to those provided to senior executives at E-OIR.
(c) Xx. Xxxxxxxx' non-statutory stock options granted by
Xxxxxxxx Technologies, Inc. under the 2004 Stock Incentive Plan which would have
been vested on or before July 31, 2006 shall become fully vested upon execution
of the Agreement. These stock options must be exercised by December 31, 2005 at
the rates at which Xx. Xxxxxxxx was granted such options or they will be
forfeited. Xx. Xxxxxxxx acknowledges that all other stock options provided to
Xx. Xxxxxxxx at the sale of E-OIR, pursuant to the 2004 Stock Incentive Plan,
which are not vested at the time of his separation of employment from E-OIR or
through this Agreement may not be exercised at any time in the future.
(d) The Promissory Note is a valid and ongoing obligation of
Xxxxxxxx and E-OIR Technologies to Xx. Xxxxxxxx.
6. PROMISSORY NOTE REMAINS IN FULL EFFECT. Xx. Xxxxxxxx does not in any
way release his right to the payments set forth in the Promissory Note.
7. EMPLOYEE PROPRIETARY INFORMATION AND NONCOMPETITION AGREEMENT.
(a) Xx. Xxxxxxxx reaffirms his obligation to comply with the
Employee Propriety Information and Noncompetition Agreement signed during his
employment (Attached as Exhibit A).
(b) In addition, Xx. Xxxxxxxx agrees for twelve (12) months
from the date of this Agreement or from the date of entry by a court of
competent jurisdiction of a final judgment enforcing this covenant (whichever is
later), he will not either directly or indirectly, own, manage, operate,
control, be an officer or director or be employed by any Competitor. For
purposes of this Agreement, a Competitor is defined as any entity which during
his employment with E-OIR provides the same or similar services to customers of
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E-OIR within the State of Virginia and where the Company possesses an active
contract, subcontract, delivery order or purchase order for support. For twelve
(12) months from the date of this Agreement or from the date of entry by a court
of competent jurisdiction of a final judgment enforcing the covenant (whichever
is later), Xx. Xxxxxxxx will not induce, solicit or cause to be solicited any
employee of E-OIR to leave his/her employment with E-OIR.
(c) The foregoing restrictions shall not be construed to
prohibit Xx. Xxxxxxxx' ownership of less than five percent of any class of
securities of any corporation which is engaged in any of the foregoing
businesses and has a class of securities registered pursuant to the Securities
Exchange Act of 1934, provided that such ownership represents a passive
investment and Xx. Xxxxxxxx is not in any way, either directly or indirectly,
involved in the management or has control of any such corporation or otherwise
takes any part in its business, other than exercising his rights as a
shareholder.
8. RETURN OF EQUIPMENT AND CONFIDENTIAL INFORMATION. Xx. Xxxxxxxx
agrees he has returned all Confidential Information and any other E-OIR or
Xxxxxxxx property including, but not limited to, computer, fax machine, printer,
and ALL other related equipment.
9. GENERAL RELEASE OF CLAIMS. Xx. Xxxxxxxx knowingly and voluntarily
releases and forever discharges, to the extent permitted by law, E-OIR,
Xxxxxxxx, their parent corporation, affiliates, subsidiaries, divisions,
insurers, successors and assigns and their current and former employees,
officers, directors and agents thereof, individually and in their corporate
capacities (collectively referred to throughout the remainder of this Agreement
as "Released Parties"), of and from any and all claims, known and unknown,
asserted or unasserted, that Xx. Xxxxxxxx has or may have against the Released
Parties as of the date of execution of this Agreement, except as noted in this
Agreement including, but not limited to, any alleged violation of:
Title VII of the Civil Rights Act of 1964, as amended; The Civil Rights
Act of 1991;
Sections 1981 through 1988 of Title 42 of the United States Code, as
amended;
The Xx. Xxxxxxxx Retirement Income Security Act of 1974, as amended;
The Immigration Reform and Control Act, as amended;
The Americans with Disabilities Act of 1990, as amended;
The Age Discrimination in Employment Act of 1967, as amended;
The Workers Adjustment and Retraining Notification Act, as amended;
The Xxxxxxxx-Xxxxx Act of 2002;
The Occupational Safety and Health Act, as amended;
The Virginia Human Rights Act, as amended;
The Virginia Statutory Provisions Regarding Retaliation/Discrimination
for Filing a Workers' Compensation Claim, as amended;
The Virginia Equal Pay Act, as amended;
The Virginians With Disabilities Act, as amended;
The Virginia AIDS Testing Law, as amended;
The Virginia Wage Payment and Hour Laws, as amended;
The Virginia Occupational Safety and Health (VOSH) Law, as amended;
Any other federal, state or local civil or human rights law or
any other local, state or federal law, regulation or ordinance;
Any public policy, contract, tort, or common law; or
Any allegation for costs, fees, or other expenses including attorneys'
fees incurred in these matters.
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E-OIR and Xxxxxxxx, along with their parent corporation, affiliates,
subsidiaries, divisions, insurers, successors and assigns and their current and
former employees, officers, directors and agents thereof, individually and in
their corporate capacities hereby release Xx. Xxxxxxxx from any and all claims,
known and unknown, asserted or unasserted, which E-OIR or Xxxxxxxx have or may
have against Xx. Xxxxxxxx, including but not limited to claims arising out of
the sale of his ownership in E-OIR, his employment at E-OIR or his position as a
director of Xxxxxxxx Technologies as of the date of execution of this Agreement
except as specifically reserved in this Agreement.
10. INDEMNIFICATION. E-OIR and Xxxxxxxx shall defend, hold harmless and
indemnify Xx. Xxxxxxxx from and against all claims, actions, damages,
liabilities or losses, whether joint or several, to which Xx. Xxxxxxxx may
become subject which arise out of or are based upon actions taken within the
scope of his employment at E-OIR for the benefit of E-OIR or in his role as a
director of Xxxxxxxx Technologies.
11. AFFIRMATIONS. Xx. Xxxxxxxx affirms that to the best of his
knowledge he has not filed, caused to be filed, or presently is a party to any
claim, complaint, or action against Released Parties in any forum or form. Xx.
Xxxxxxxx further affirms he has been paid and/or has received all leave (paid or
unpaid), compensation, wages, bonuses, commissions, and/or benefits to which he
may be entitled and that no other leave (paid or unpaid), compensation, wages,
bonuses, commissions and/or benefits are due to him, except as provided in this
Agreement and except for Xx. Xxxxxxxx' final paycheck. Xx. Xxxxxxxx affirms that
he has no known workplace injuries or occupational diseases and has been
provided and/or has not been denied any leave requested under the Family and
Medical Leave Act or related state or local leave or disability laws.
E-OIR and Xxxxxxxx affirm that they have been paid for any amounts due
from Xx. Xxxxxxxx and that to the best of their knowledge all property and
equipment has been returned.
12. ENFORCEMENT OF AGREEMENT. Xx. Xxxxxxxx acknowledges and agrees that
compliance with the fair and reasonable covenants set forth in Paragraph 7 of
this Agreement are necessary to protect the business and goodwill of E-OIR and
that any breach of Paragraph 7, or any subparagraphs hereof, will result in
irreparable and continuing harm to E-OIR, for which money damages may not
provide adequate relief. Accordingly, in the event of any breach or anticipatory
breach of Paragraph 7 of this Agreement by Xx. Xxxxxxxx, E-OIR and Xx. Xxxxxxxx
agree that E-OIR shall be entitled to the following particular forms of relief
as a result of such breach, in addition to any remedies otherwise available at
law or equity: (a) injunctions, both preliminary and permanent, enjoining or
restraining such breach or anticipatory breach, and Xx. Xxxxxxxx hereby consents
to the issuance thereof, forthwith and without bond, by any court of competent
jurisdiction which has personal jurisdiction over Xx. Xxxxxxxx; and (b) the
prevailing party shall be entitled to recover all reasonable sums and costs,
including attorneys' fees, incurred by the prevailing party in any such action.
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13. CONFIDENTIALITY. The parties agree to keep confidential and not
disclose any of the terms, conditions, amounts or any other details of this
Agreement to any person, provided that any party may make disclosure (1) to
their attorneys consulted by such party to understand the interpretation,
application, or legal effect of this Agreement, (2) as required by law or
regulation of any governmental authority, or to the extent necessary to verify
to tax authorities the nature of the payments made hereunder, (3) to the extent
necessary to enforce this Agreement by legal action, (4) in the case of Xx.
Xxxxxxxx, only with respect to the information in those sections relating to
financial terms, obtaining financial planning or (5) to Xxxxxx X. Xxxxxxx, Xx.
provided such disclosure is limited solely to disclosure of the release given to
Xxxxxxxx and E-OIR under the Agreement.
Notwithstanding this provision, the parties may disclose to third
parties that the Agreement is confidential and cannot be discussed. In addition,
notwithstanding the confidentiality provision, Xx. Xxxxxxxx shall be permitted
to disclose to potential employers Paragraph 7 of the Agreement and the Employee
Proprietary Information and Noncompetition Agreement provision.
In the event of a breach of this provision by Xx. Xxxxxxxx by
disclosing in writing any terms of the Agreement, no further benefits or
severance payments shall be due and payable. If an action is brought on the
breach of this provision, the prevailing party shall be entitled to its
attorneys' fees and costs in bringing or defending any action.
14. PUBLIC DISCLOSURE OF RESIGNATIONS. No public statement shall be
made by E-OIR prior to Xx. Xxxxxxxx' last date of employment. Thereafter, the
parties shall reasonably agree upon the content of any such public disclosure.
In response to any questions on Xx. Xxxxxxxx' resignation as a director, the
parties shall state that Xx. Xxxxxxxx resigned for personal reasons. In response
to questions on Xx. Xxxxxxxx' departure as an employee, the parties shall state
that Xx. Xxxxxxxx has decided to leave to pursue other opportunities and they
wish each other continued success.
15. NONDISPARAGEMENT. The parties further agree that they will not
disparage each other.
16. NO PRECEDENT. The parties agree that the terms, conditions and
details of this Agreement are unique and are addressed to the specific
circumstances of their relationship and accommodation of the parties and shall
in no event provide a precedent, policy or practice for treatment of other
employees of E-OIR in the future.
17. GOVERNING LAW AND INTERPRETATION. This Agreement shall be governed
by and conform with the laws of the Commonwealth of Virginia without regard to
its conflict of laws provision. In the event any party breaches any provision of
this Agreement, the parties affirm that either may institute an action to
specifically enforce any term or terms of this Agreement. Should any provision
of this Agreement be declared illegal or unenforceable by any court of competent
jurisdiction and cannot be modified to be enforceable, excluding the general
release language, such provision shall immediately become null and void, leaving
the remainder of this Agreement in full force and effect. No provision shall be
construed against one party on the basis of which party drafted the language in
the Agreement.
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18. NO ADMISSION OF WRONGDOING. The parties agree that neither this
Agreement nor the furnishing of the consideration for this Agreement shall be
deemed or construed at anytime, for any purpose, as an admission by either party
of any liability or unlawful conduct of any kind.
19. AMENDMENT. This Agreement may not be modified, altered or changed
except upon express written consent of both parties wherein specific reference
is made to this Agreement.
20. ENTIRE AGREEMENT. This Agreement and General Release sets forth the
entire agreement between the parties hereto, and fully supersedes any prior
agreements or understandings between the parties. Xx. Xxxxxxxx acknowledges that
he has not relied on any representations, promises, or agreements of any kind
made to him in connection with his decision to accept this Agreement and General
Release, except for those set forth in this Agreement and General Release.
IN WITNESS WHEREOF, the parties hereto knowingly and
voluntarily executed this Agreement and General Release as of the date set forth
below:
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E-OIR, TECHNOLOGIES, INC.
Date: By:/S/ XXXXXX XXXXXX
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Xxxxxx Xxxxxx
XXXXXXXX TECHNOLOGIES
Date: By:/S/ XXXXXX XXXXXX
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Xxxxxx Xxxxxx
Date: /S/ XXXXXXX XXXXXXXX
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Xxxxxxx Xxxxxxxx
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